Najib announced a raft of reforms to entice lost support for the forthcoming general elections. However, he lacks the political will to push through these reforms. His fear of losing the UMNO warlords’ support has made his promises of reform to be all sound and no fury. KPRU and I have written a series of articles to show that Najib’s reforms are illusory[2]. In the 5th article of this series, we seek to demonstrate SOSMA is just another show without substance.

SOSMA

Malaysians’ joy in having the ISA and four emergency declarations abolished were short-lived. Najib in enacting SOSMA retained the power for arbitrary arrest. He swapped detention without trial under the ISA to detention without a proper trial under SOSMA.

Under SOSMA, the police have powers to arrest and detain any person whom they have reason to believe is involved in security offences for 28 days. The person detained is not entitled to challenge the legality of the detention. The definition of “security offence” is broadly and vaguely defined. It includes “activity which is detrimental to parliamentary democracy”. This may make those holding demonstrations for or against certain legislation to be committing a security offence. SOSMA allows the police to gather information in violation of privacy laws, statements from dead persons or persons that cannot be found to be admitted as evidence, to secure a conviction by lowering the standard of proof and creates a court procedure that does not meet the requirements of a fair trial. The Act allows the accused to be detained pending appeal even after the High Court has acquitted the accused. SOSMA is an affront to due process. It is a degradation of the rule of law and a return to the rule of men.

The Climate of Fear Continues

There is no adequate provision in SOSMA to prevent the authorities abusing the powers of arbitrary arrest and detention. Dato Seri Mohamed Nazri Abdul Aziz, Minister in the Prime Minister’s Department admitted in Parliament:-

“…the then Deputy Prime Minister, Tun Abdul Razak had promised in 1960 that the ISA will only be used against communists but it was not the case all the time.”[3]

Malaysians know the draconian powers of the ISA were used to stifle political dissent, silence critics, suppress the opposition, prevent public debate on important issues and to instill fear amongst the populace. Malaysians know those incarcerated under the ISA posed a threat not to the security of the nation but the security of the nation’s political masters. The 109 detained in 1987 under “Operation Lalang”, the Hindraf leaders after 2008, Seputih MP Teresa Kok, Sin Chew reporter Tan Cheng Hoon, Sungai Siput MP Dr Michael Jayakumar and the 23 PSM members for Bersih 2.0 had nothing to do with national security and everything to do with politics.

Nazri claims the provision in SOSMA that no person shall be detained because of his political beliefs shows the Government’s sincerity not to abuse the powers of detention. However, the provision is inadequate and impotent to stop the police abusing their powers to arrest and detain persons “whom they believe is involved in security offences”. It takes very little for the police to have reasons to believe that opposition leaders and human right activists are “waging war” and it will not take much for them to believe they are “involved in security offences”.

The recent police statements that Bersih 3.0 participants intended to cause death and are Marxists show the police’s propensity to believe in the slightest pretext has not been curbed.

The police charging Dato Seri Anwar Ibrahim, Azmin Ali, Chegu Bard and KEADILAN members under the Peaceful Assembly Act, the government’s suit against Ambiga and Bersih 3.0 organizers for damages, the police allowing beef burger stalls in front of Ambiga’s house, desecrating her as a Hindu and permitting butt dancing insulting her as a woman, do not instill public confidence that UMNO/BN will not manipulate and use the laws for their own ends.

The police have also allowed thugs and goons to heckle speakers and harass those attending Pakatan Rakyat rallies. In the recent Lembah Pantai rally, bricks and stones were thrown into the crowd injuring innocent members of the public. The police did not stop this violence. In preventing the public from making an informed decision as to whom they wish to vote, the people’s fundamental democratic rights have been violated. The Prime Minister has not spoken against nor taken action to stop these violations. By his silence he condones them. This can never be the conduct of one who truly believes in reform and champions democracy.

Najib has retained the tools of oppression under SOSMA. Even Nazri dare not give parliament an assurance that a Prime Minister will not use the powers for his personal advantage[4]. Najib has retained his mentor’s medicine, only the label is changed. The climate of fear continues.

The Power behind the Throne

By enacting SOSMA, Najib reveals he does not have the personal fortitude to govern without the power of arbitrary arrest and detention. The previous Prime Minister, Tun Mahathir, denied he authorized “Operation Lalang” and blamed it on the police. If Najib is moon walking then Mahathir is doing a rendition of “Billie Jean”:

“They say I AM THE ONE, but Ops Lalang is not my son”

Just as in the song no one believes that HE IS NOT THE ONE! The ex-Prime Minister’s temerity in denying he authorized the abuse of the ISA is matched only by the timidity of the present Prime Minister’s response. Najib has not corrected Mahathir’s misstatement nor revealed the truth. Truth will help heal the wounds caused by the abuse of the ISA. Najib’s sincerity in abolishing the ISA would not be doubted if he had established a royal commission of inquiry to call for truth and reconciliation as was done in South Africa. This would have brought closure to the abuses committed. This was not done. Instead we have Mahathir calling for the return of the ISA if BN is returned to power[5]. This raises the question of who is the real power behind the throne. It also raises the question whether the abolishing of the ISA is only a temporary measure, a vote fishing gimmick and that BN will revive the ISA once it retains power. Najib’s silence on this has been deafening!

National Security and Terrorism

The reasons given for detention without a proper trial have not been convincing.

Nazri in supporting the separate and different trial process for security offences from the existing criminal justice system cited 12 terrorist attacks in Malaysia since 1999. Militant groups had planned to attack the Petronas Twin Towers, Jemmaah Islamiya targeted the Kuala Lumpur International Airport and the Kumpulan Militan planned to attack a US warship docked in a Malaysian port.

BN backbenchers argued that preventive detention and a different trial process is necessary to deal with terrorists. They referred to the US Patriot Act and the preventive detentions carried out b the Bush administration after 9/11.

They also argued that national security detention is necessary to protect the sensitivity of intelligence sources and techniques that would be compromised if terrorists were brought to a trial in the regular criminal justice system thereby necessitating specialized procedures in court trials with lower standards of proof.

In summary, the argument for national security detention and specialized trial is that it is crucial to protect society from suspected terrorists, even if proof that they have committed or intend to commit the crime is insufficient for a court to charge or convict them.

The reasoning is flawed and the argument unsustainable.

National Security and the Rule of Law

Najib and the BN backbenchers’ arguments echo those used by US politicians, military strategists, academicians and popular commentators supporting George Bush’s Patriot Act and his preventive detention regime. These arguments are flawed.[6]